United States District Court, M.D. North Carolina
LYNN DOE, as Guardian ad Litem for "ROBBY" and "TIMMY," minors, ANN DOE, as Guardian ad Litem for "ADAM," a minor, ELLEN DOE, as Guardian ad Litem for "DANNY," a minor, and CINDY DOE, as Guardian ad Litem for "WYATT," a minor, Plaintiffs,
UNITED STATES OF AMERICA, STEPHEN J. SICINSKI, KIM MCBROOM, ANNETTE SKINNER COLEMAN, EMILY MARSH, JOHN/JANE DOE #1, JOHN/JANE DOE #2, and JOHN/JANE DOE #3, Defendants.
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE.
before this court is the Motion to Dismiss Plaintiffs'
Amended Complaint filed by Defendant United States of America
(the "Government"). (Doc. 4 0.) The Government has
filed a brief in support of its motion. (Doc. 41.) Plaintiffs
Lynn Doe, Ann Doe, Ellen Doe, and Cindy Doe (collectively,
"Plaintiffs") have filed a response in opposition,
(Doc. 46), and the Government has replied, (Doc. 49).
before this court is the Motion to Dismiss Plaintiffs'
Amended Complaint filed by Defendants Stephen J. Sicinski,
Kim McBroom, Annette Skinner Coleman, and Emily Marsh
(collectively, "Individual Defendants," and
together with the Government, "Defendants"). (Doc.
42.) The Individual Defendants have filed a brief in support
of their motion. (Doc. 43.) Plaintiffs have responded in
opposition, (Doc. 47), and the Individual Defendants have
replied, (Doc. 50). Defendants' Motion for a Stay in
Light of Lapse of Appropriations is also before this court.
(Doc. 48.) On March 14, 2019, this court heard oral argument
on both motions to dismiss. For the reasons stated herein,
the Government's Motion to Dismiss, (Doc. 40), will be
granted in part and denied in part. The Individual
Defendants' Motion to Dismiss, (Doc. 42), will be
granted. And Defendants' Motion for a Stay, (Doc. 48),
will be denied as moot.
allege that Jose Nevarez ("Nevarez"), an instructor
at Department of Defense ("DoD") elementary schools
located on the Fort Bragg military installation in North
Carolina, sexually abused their children. (Amended Complaint
("Am. Compl.") (Doc. 39) ¶¶ 1, 2, 31.)
Plaintiffs bring this lawsuit alleging wrongful acts and
omissions by the Defendants, in violation of duties owed to
Plaintiffs' children pursuant to a federal statute, DoD
regulations, and North Carolina common law. (E.g.,
id. ¶¶ 10,
Lynn Doe is the mother and Guardian ad Litem for minors
"Robby" and "Timmy." (Id. ¶
Plaintiff Ann Doe is the mother and Guardian ad Litem for
minor "Adam." (Am. Compl. (Doc. 39) ¶ 23).
Plaintiff Ellen Doe is the mother and Guardian ad Litem for
minor "Danny." (Id. ¶ 24.) Plaintiff
Cindy Doe is the mother and Guardian ad Litem for minor
"Wyatt." (Id. ¶ 25.)
Sicinski is a colonel in the United States Army and was the
Fort Bragg Garrison Commander during the relevant time.
(Id. ¶27.) Defendant McBroom was the principal
at Fort Bragg's Pope Elementary School ("Pope
Elementary") beginning in the fall of 2011 and during
the relevant time thereafter. (Id. ¶¶ 28,
94). Defendant Coleman was a counselor at Pope Elementary
during the relevant time. (Id. ¶ 29.) Defendant
Marsh was the Fort Bragg District Superintendent during the
relevant time. (Id. ¶ 30.)
facts, viewed in the light most favorable to Plaintiffs, are
do not allege when Nevarez was hired as an instruction at
Fort Bragg's DoD-operated elementary schools. Whenever
Defendants hired Nevarez to be a substitute teacher,
teacher's aide, and paraprofessional educator
("parapro"), they allegedly did not conduct a
thorough background check, in violation of DoD regulations.
(Id. ¶¶ 47-48, 50.) The background check
Defendants did conduct failed to obtain information from
Nevarez's home jurisdiction of Puerto Rico. (Id.
¶ 50.) Plaintiffs allege that a more thorough background
check would have revealed prior allegations of sexual abuse
from 2006, (id. ¶¶ 46, 48), and that
Defendant Marsh later "admitted that had the background
check been completed Nevarez would not have been hired."
(Id. ¶ 50.) Because Defendants did not conduct a
thorough background check, Defendants were allegedly required
to subject Nevarez to line-of-sight supervision or video
monitoring in accordance with DoD regulations, which
Defendants did not do. (Id. ¶¶ 49, 51.)
result, Plaintiffs allege that Nevarez sexually abused
elementary school students from August 2010 through November
2012 at several Fort Bragg schools, including Pope
Elementary. (See id. ¶ 38.)
Nevarez's Conduct at Pope Elementary
2010 until at least November 2011 and March 2012 at the
latest, Nevarez was a substitute teacher and teacher's
aide at Pope Elementary. (See id. ¶¶ 39,
121.) Robby, Timmy, Adam, Danny, and Wyatt (collectively,
"Minor Plaintiffs") attended Pope Elementary during
this time. (Id. ¶ 39.) Minor Plaintiff Robby is
autistic, (id. ¶ 22), and Defendants assigned
Nevarez to be Robby's parapro for the 2010-11 and 2011-12
academic years. (Id. ¶¶ 39, 44, 192.)
During this time, Nevarez allegedly sexually abused Minor
Plaintiffs in school classrooms and bathrooms during school
hours. (See id. ¶¶ 40-41.)
spring of 2011, Danny became apprehensive about attending
school and repeatedly stayed home. (See id.
¶¶ 57, 59.) Danny and his mother met with a social
worker in June 2011. (See id. ¶ 58.)
Danny's mother specifically asked the social worker if
something occurring at school could be causing Danny's
distress, which the social worker allegedly dismissed.
(Id. ¶¶ 60-61.) Shortly thereafter,
Danny's mother met with the then-Principal of Pope
Elementary, Joel Grim, to discuss Danny's newfound
apprehension. (Id. ¶ 64.) Plaintiffs allege
that neither the social worker nor Principal Grim fully
investigated Danny's change in behavior. (Id.
¶¶ 62, 65, 68.) Had they, Plaintiffs contend, they
would have identified signs of sexual abuse. (Id.
September 2011, Nevarez allegedly sexually molested two
unidentified Pope Elementary students. (See id.
¶ 55.) On October 11, 2011, Adam began crying and
told his mother that Nevarez made Adam sit on his lap and
"stroked his inner thigh" during class.
(Id. ¶¶ 72, 74.) Adam screamed and told
his mother that he did not want to sit on Nevarez's lap
anymore. (Id. ¶ 73.) Adam and his mother
immediately met with Defendant Coleman, the school counselor
at Pope Elementary. (Id. ¶¶ 78, 80.) Adam
allegedly told Coleman that "Nevarez was touching him
and making him sit on Nevarez's lap and that he did not
want to attend school anymore because he was scared that
Nevarez would be there and touch him again."
(Id. ¶ 81.) Coleman allegedly dismissed
Adam's claims, defended Nevarez, and suggested that Adam
had initiated any contact with Nevarez. (Id.
¶¶ 82, 84.) Adam's mom responded that
"Adam was not responsible for Nevarez sexually abusing
him." (Id. ¶ 86.) Coleman then asserted
that Defendants took allegations of child abuse seriously,
and she promised to report Adam's disclosure and make
sure that it was investigated. (Id. ¶ 89.)
allege, upon information and belief, that Coleman informed
Defendant McBroom, Pope Elementary's Principal, of
Adam's disclosure. (Id. ¶ 94.) Plaintiffs
allege that neither Coleman nor McBroom investigated
Adam's claim or reported Adam's disclosure to their
supervisors or the local United States Army Family Advocacy
Program ("FAP") officer as they were required to
under the DoD regulations. (Id. ¶¶ 94, 95,
106, 113, 231.) Instead, "[s]oon after" Adam's
disclosure, Defendant Coleman allegedly told Nevarez about
it. (Id. ¶ 97). Nevarez then returned to his
classroom, told Adam about his conversation with Coleman, and
proceeded to sexually abuse Adam by "strok[ing]
Adam's penis and anus underneath his clothing" while
Adam sat on Nevarez's lap. (Id. ¶¶
98-102.) Defendant McBroom allegedly assigned Nevarez to Pope
Elementary classrooms on at least seventeen days in the two
months following Adam's disclosure, including to
Adam's and other Minor Plaintiffs' classrooms, where
Nevarez allegedly abused them. (Id. ¶ 110.)
November 8, 2011, Wyatt resisted attending school and told
his mother that Nevarez was inappropriately touching him and
other students. (See Id. ¶¶
118-19.) Wyatt's mother informed her husband, who
reported Wyatt's disclosure to the Fort Bragg Military
Police that same day. (Id. ¶ 120.) Wyatt's
parents met with Defendants McBroom and Coleman shortly
thereafter. (Id. ¶ 123.) Coleman denied that
Nevarez had sexually abused students or that he would do so.
(Id. ¶¶ 124-25.) McBroom informed
Wyatt's parents that Defendants followed protocol after
becoming aware of Nevarez's sexual abuse. (Id.
¶ 126.) McBroom offered no assistance in providing Wyatt
with counseling or treatment. (See id. ¶ 128.)
Plaintiffs allege that neither Coleman nor McBroom reported
Wyatt's disclosure in accordance with DoD regulations.
(Id. ¶ 129.) On or around November 8, 2011,
Defendants "removed Nevarez from the classroom,"
but did not remove him from the base. (See id.
January 6, 2012, Plaintiffs allege that Defendants received
another report of child abuse by Nevarez, (Id.
¶ 143), yet, allege no other details about this report
except that Defendants failed to adequately respond to it.
(See Id. ¶¶ 143-44.)
early 2012, Danny told his mother that Nevarez made Danny sit
on his lap while in class and would "rub [Danny's]
back, butt, and thighs, and put his hands inside Danny's
pants." (Id. ¶¶ 147-48.) While doing
so, Danny "would feel something hard poking from
Nevarez's pants." (Id. ¶ 14 9.)
Danny's mother reported Danny's disclosure to a
Criminal Investigation Command agent, who was apparently
working with the FBI to investigate Nevarez at the time.
(See id. ¶¶ 134, 150, 155.) The agent
allegedly told Danny's mother to keep the sexual abuse
allegations quiet, (id. ¶ 156), and Danny's
mother threatened to go to the media. (Id. ¶
157.) Plaintiffs allege that Defendants retaliated against
Danny's family for this threat by transferring
Danny's father to a "low-level" and
"menial desk job far away from Fort
Bragg." (Id. ¶¶ 258-60.)
February 21, 2012, Plaintiffs Ann and Ellen Doe met with
Defendant McBroom to seek information on Defendants'
supposed investigation of Nevarez (it is unclear whether
Plaintiffs refer here to the criminal investigation or a
separate internal investigation). (See id.
¶¶ 158-59.) McBroom allegedly told them it was the
first she had heard of any sexual abuse allegations against
Nevarez, yet Plaintiffs also allege that McBroom declined to
comment further due to an ongoing investigation. (See
id. ¶¶ 162-63.)
February 23, 2012, Adam's father informed his commanding
officer of Nevarez's abuse, and he referred Adam's
father to a social worker at Womack Army Medical Center.
(Id. ¶ 165.) Plaintiffs Ann and Ellen Doe then
met with that social worker and disclosed Nevarez's abuse
of their sons. (Id. ¶ 166.) The social worker
allegedly "blamed the victims" for the abuse and
accused Adam's mother of having a "vendetta against
Coleman." (Id. ¶¶ 167-68.) The social
worker nonetheless said that she would investigate the matter
but did not provide any treatment information, which
Plaintiffs allege she was legally obligated to do.
(Id. ¶ 169-70.)
early March 2012, Defendants held a meeting for the parents
of those children allegedly abused by Nevarez, which
Adam's and Wyatt's parents attended. (Id.
¶ 172.) The unidentified government representatives at
the meeting asserted that they first learned of Nevarez's
abuse from Wyatt's mother in November 2011. (Id.
¶ 174.) Adam's mother told the representatives that
she had reported Adam's abuse in October 2011.
(Id.) On March 13, 2012, Defendants sent a letter to
parents regarding Nevarez's abuse. (Id.
¶¶ 177-78.) The letter stated that school officials
stopped calling Nevarez to substitute "[i]immediately
upon notification of the initial allegation."
(Id. ¶¶ 177-78.) Plaintiffs allege that
Defendants in fact waited "almost a month [until
November 2011] after the initial report [in October 2011]
before dismissing Nevarez and another four months [until
March 2012] before barring him from the base."
(Id. f 179). That delay, Plaintiffs continue,
"enabled Nevarez to continue to abuse children ... on
the base," (id. ¶ 180), and
"undermined the investigation and the requirement to
provide prompt and comprehensive assessment and
treatment." (Id. ¶ 181.)
to a March 16, 2012 town hall meeting at Pope Elementary,
Defendants allegedly "notified Robby's parents of
Nevarez's sexual crimes against their son."
(Id. ¶ 197.) Plaintiffs allege that Defendants
assigned Nevarez to work with Robby after they were notified
of Nevarez's abuse. (Id.) Plaintiffs allege that
Nevarez took advantage of his position as Robby's parapro
to "continuously and repeatedly stroke and rub
Robby's penis, back, thighs, legs, and other parts of his
body." (Id. ¶ 194.) Plaintiffs do not
specifically allege when Nevarez abused Robby.
Sicinski and Marsh attended the March 16, 2012 town hall
meeting at Pope Elementary. (Id. ¶ 184.)
Sicinski "admitted that a November 8, 2011 report on
Nevarez's sexual abuse of children sat on his desk for
three months without being read." (Id. ¶
186.) Parents were told that they should contact Womack Army
Medical Center's Office of Social Work if they were
concerned that their child might have been sexually abused.
(Id. ¶ 188.)
after mid-March 2012, one of Danny's classmates informed
his mother that he "had witnessed the sexual abuse of
Danny and other students." (See id. ¶
203.) Plaintiffs allege that "[s]everal children
interviewed during [an] investigation stated that they
observed Nevarez either following or pulling boys into the
school bathroom." (Id. ¶ 206.) Plaintiffs
allege that Defendants McBroom and Coleman knew that other
teachers allowed Nevarez's conduct. (Id. ¶
March 23, 2012, Defendants notified parents at all Fort Bragg
schools where Nevarez had previously taught that there was an
ongoing investigation into allegations of sexual abuse by
"an unnamed substitute teacher." (Id.
¶ 208.) Defendant Sicinski signed the letter, which
contained commitments regarding treatment, care, and
counseling for victims. (Id. ¶ 209.)
March 28, 2012, Defendants conducted an After Action Review
("AAR") of their handling of the allegations
against Nevarez, the findings of which were documented in a
May 3, 2012 memorandum (the "AAR Memo") prepared by
Defendant Sicinski. (Id. ¶¶ 211-12.) The
AAR Memo detailed Defendants' numerous shortcomings, many
in violation of DoD regulations. (See, e.g.,
id. ¶¶ 215-16, 218, 222.) The AAR Memo
identified a "reporting breakdown" on November 8,
2011 as "the primary cause of the installations'
[sic] failure." (Id. ¶ 219 (quoting the
AAR Memo at 2).)
18, 2012, Defendants held a meeting for the sixteen families
affected by Nevarez's actions. (See Am. Compl.
(Doc. 39) ¶¶ 224, 229.) At that meeting, Defendant
Sicinski, who left his post at Fort Bragg shortly thereafter,
(id. ¶¶ 234-35), "acknowledged the
widespread sexual abuse of children and regretted that the
abuse occurred." (Id. ¶ 229.) The
Defendants also allegedly acknowledged several of their
shortcomings in preventing the sexual abuse, including
insufficient monitoring of teachers and insufficient training
on sexual abuse reporting and identification. (See
id. ¶ 230.) During that meeting, a Government
representative "addressed Counselor Coleman's
failure to respond to the October 2011 report of Adam's
sexual abuse." (Id. ¶ 231.) He allegedly
said that DoD school policy "requires school personnel
not to make a judgment about the level of abuse or whether
there is abuse, but that they must report up the chain of
command any indication or hint of child sexual abuse."
mid-2013, Timmy allegedly disclosed that Nevarez had abused
him by stroking Timmy's body while he sat on
Nevarez's lap. (See id. ¶¶ 265, 267.)
A therapist evaluated Timmy and concluded he had been
sexually abused by Nevarez. (Id. ¶ 272.)
Timmy's mother contacted a social worker who advised her
that "the Nevarez investigation was 'closed' and
that Timmy should get counseling if there were any
issues." (Id. ¶¶ 273-74, 278-79.)
Plaintiffs do not specifically allege when Nevarez abused
assert that Defendants did not provide or authorize treatment
for Minor Plaintiffs, including Robby, until months after
Wyatt's disclosure in November 2011 and delayed in
providing medical records and never provided other promised
records. (Am. Compl. (Doc. 39) ¶¶ 239, 241-43,
The Investigation Report & Nevarez's Conduct at
2011, Defendants initiated a criminal investigation, which
Plaintiffs assert did not result in charges against Nevarez.
(Id. ¶¶ 131, 133.) Plaintiffs claim that
the investigation "was intended more to shield the
Defendants from civil liability than to prosecute
[Nevarez]." (Id. ¶ 131.) The Plaintiffs
met and communicated with the agent in charge of the criminal
investigation in November 2011 and December 2011.and were
allegedly told to keep quiet about the investigation and
Nevarez's abuse. (See Id. ¶¶ 134-3 9.)
As part of the investigation, Wyatt and Adam were interviewed
at the Child Advocacy Center in late 2011. (Id.
¶ 140.) Yet, a social worker allegedly did not review
Wyatt's interview and did not contact Wyatt's mother
until March 2012. (See id. ¶ 171.) Plaintiffs
allege the criminal investigation took over two years, that
Defendants did not seek to indict Nevarez, refused to offer
Plaintiffs an explanation for not doing so, and that the
"United States Attorney's Office intentionally
failed to conduct a thorough, professional investigation . .
. ." (Id. ¶¶ 290-92.) Plaintiffs
further allege that Defendants failed to confer with
victims' parents about an ongoing criminal investigation
in' violation of 18 U.S.C. § 3771. (Id.
allege several facts gathered from the Investigation Report
concerning Nevarez's conduct at other schools. In 2006,
Nevarez was accused of similar sexual abuse while working at
Hoke County High School in North Carolina. (See id.
¶ 46.) In January or February 2011, Nevarez
"'hugged students, targeted kids with disabilities,
[and] stared at girl's [sic] behinds'" at Fort
Bragg's Irwin Elementary School. (Id. ¶
52.) Based on these facts, Plaintiffs allege that Defendants
"knew about Nevarez's sexual abuse ... as early as
January or February 2011, when an Irwin school student
reported [Nevarez's] inappropriate behavior to the school
teacher and principal." (Id. ¶ 221.) A
Fort Bragg student also reported at an unalleged time that
Nevarez pulled kids into bathrooms, touched their butts and
penises, and set students on his lap. (Id. ¶
54.) Plaintiffs allege that the student told his teacher and
principal about this conduct, but that they, along with other
school employees, failed to report these incidents to
officials at the time they occurred, in violation of federal
and state law and DoD regulations. (Id. ¶¶
Defendants' Alleged Duties
allege that Defendants voluntarily assumed several duties and
were subject to others imposed by the DoD regulations and a
federal statute, 42 U.S.C. § 13031. (Am. Compl. (Doc.
39) ¶ 37.) Specifically, Plaintiffs allege that
Defendants had a duty to prevent and protect students from
sexual abuse, (id. ¶ 37.A); a duty to report
child sexual abuse, (id. ¶ 37.B); a duty to
identify, investigate, and treat victims of child sexual
abuse, (id. ¶ 37.C); and a duty to conduct
background checks and train employees about child sexual
abuse, (id. ¶ 37.D).
allege that, if Defendants had conducted a thorough
background check or subjected Nevarez to line-of-sight
supervision, the sexual abuse would not have occurred.
(Id. ¶ 51.) Plaintiffs also allege that school
officials failed to adequately train school personnel in
violation of DoD regulations, (id. ¶ 232), and
that the Government "failed to provide education
programs to children of Fort Bragg schools, including [Minor
Plaintiffs], on understanding and acting to prevent
themselves from sexual abuse." (Id. ¶
234.) Plaintiffs also allege that Defendants breached their
duty, as promised to Plaintiffs in the March 23, 2012 letter,
to provide treatment, care and counseling to victims.
(Id. ¶¶ 209, 238.) Plaintiffs generally
allege that Defendants' breaches of these duties owed to
Minor Plaintiffs proximately caused Minor Plaintiffs'
injuries, including symptoms of severe sexual abuse.
(Id. ¶¶ 14, 43.)
Claims for Relief
allege ten claims for relief, six against the Government and
four against the Individual Defendants. Plaintiffs allege
that the Government is generally liable to them under the
Federal Tort Claims Act ("FTCA") and North Carolina
law. (Id. at 53.) In Claim I, Plaintiffs allege that
the Government breached its alleged duty to protect from,
investigate, and remediate Nevarez's sexual abuse given a
reasonably foreseeable risk. (Id. ¶¶
298-04.) In Claims II-IV, Plaintiffs allege common law
negligence against the Government for failure to protect,
report, investigate, and provide treatment under three
theories: a voluntarily assumed duty (Claim II), a special
duty (Claim III), and a duty arising out of a special
relationship (Claim IV). (Id. ¶¶ 305-32.)
In Claim V, Plaintiffs allege negligence per se and, in Claim
VI, Plaintiffs bring a premises liability claim.
(Id. ¶¶ 333-49.)
allege that the Individual Defendants are liable to them for
violating their Fifth Amendment substantive due process right
to bodily integrity. (See ¶¶ 358, 371,
379, 387.) Claims VII-X are Bivens claims, under
theories of danger creation, (id. ¶¶
357-69 (Claim VII)); failure to screen or supervise,
(id. ¶¶ 370-77 (Claim VIII)); failure to
terminate, (id. ¶¶ 378-85 (Claim IX)); and
failure to train, (id. ¶¶ 386-92 (Claim
THE GOVERNMENT'S MOTION TO DISMISS
Government has moved to dismiss Claims I-VI pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc.
40.) The Government contends that this court lacks subject
matter jurisdiction over Claims I-VI because the FTCA's
intentional torts exception bars those claims. See
28 U.S.C. § 2680(h); (United States' Br. in Supp. of
Mot. to Dismiss ("Gov't Br.") (Doc. 41) at
Alternatively, the Government contends that, even if this
court has jurisdiction, Plaintiffs fail to state a claim upon
which relief can be granted because the Government only owed
Minor Plaintiffs a duty of ordinary care to protect them from
foreseeable harm, and Nevarez's abuse was not reasonably
foreseeable. (Id. at 24.)
12(b)(1) Legal Standard
Federal Rule of Civil Procedure 12(b)(1), a plaintiff must
prove by a preponderance of the evidence the existence of
subject matter jurisdiction. See Demetres v. E. W.
Constr., Inc., 776 F.3d 271, 272 (4th Cir.
2015). A defendant may challenge subject matter jurisdiction
factually or facially. See Kerns v. United States,
585 F.3d 187, 192 (4th Cir. 2009). Here, the Government
facially challenges subject matter jurisdiction. (See
Gov't Br. (Doc. 41) at 8.) In a facial challenge, a
defendant asserts that the allegations, taken as true, are
insufficient to establish subject matter jurisdiction.
See Kerns, 585 F.3d at 192. The court then
effectively affords a plaintiff "the same procedural
protection as he would receive under a Rule 12(b)(6)
consideration," taking the facts as true and denying the
Rule 12(b)(1) motion if the complaint "alleges
sufficient facts to invoke subject matter jurisdiction."
Id. (quoting Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982)).
12(b)(6) Legal Standard
survive a Rule 12(b)(6) motion, "a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is plausible on its face if
"the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable" and demonstrates "more than a sheer
possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556-57). When ruling on a motion to dismiss, this
court accepts the complaint's factual allegations as
true. Iqbal, 556 U.S. at 678. Further, this court
liberally construes "the complaint, including all
reasonable inferences therefrom, ... in plaintiff's
favor." Estate of Williams-Moore v. All. One
Receivables Mgmt, Inc., 335 F.Supp.2d 636, 646 (M.D.
N.C. 2004) (citation omitted). This court does not, however,
accept legal conclusions as true, and "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Iqbal, 556 U.S. at 678.
sovereign, the United States and its agencies are immune from
suit, absent a waiver of that immunity. F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994). A plaintiff bears the
burden of demonstrating a waiver of that immunity and also
that an exception to the waiver does not apply; if a
plaintiff fails to meet that burden, then the court lacks
subject matter jurisdiction and must dismiss the suit.
See Welch v. United States, 409 F.3d 646, 651 (4th
allege that this court has jurisdiction under the FTCA, which
creates a limited waiver of the Government's sovereign
immunity. In that regard, the FTCA is strictly construed, and
all ambiguities are resolved in favor of the United States.
Robb v. United States, 80 F.3d 884, 887 (4th Cir.
1996). The FTCA provides that:
[T]he district courts . . . shall have exclusive jurisdiction
of civil actions on claims against the United States, for
money damages . . . for injury or loss of property, or
personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while
acting within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). The FTCA's waiver of
immunity only applies in negligence actions against the
Government where the Government, "if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred." 28 U.S.C.
§ 1346(b)(1). Here, that law of the place is North
a claim meets § 1346(b)(1)'s requirements, the claim
might be barred by an exception to the FTCA's waiver of
immunity. One of those exceptions, the intentional tort
exception, provides that the FTCA's waiver of sovereign
immunity does not apply to any claim arising out of assault
or battery. 28 U.S.C. § 2680(h). Here, that means that,
if Plaintiffs' claims against the Government arise out of
Nevarez's sexual assault or battery of Minor Plaintiffs,
then those claims are barred by the intentional tort
establish that their claims against the Government did not
arise out of Nevarez's intentional torts, Plaintiffs must
plausibly allege that the Government negligently breached a
duty imposed upon it that was "entirely
independent" of Nevarez's employment status and that
the breach "allowed a foreseeable assault and battery to
occur." Sheridan I, 487 U.S. at 401.
Allegations of negligent supervision, however, will not
establish FTCA liability "because the United States owes
no general duty to the public to supervise its employees or
agents with care." Sheridan v. United States,
969 F.2d 72, 75 (4th Cir. 1992) ("Sheridan
II") (citation and internal quotation marks
omitted); see also Sheridan I, 487 U.S. at 406
(Kennedy, J. concurring) ("To determine whether a claim
arises from an intentional assault or battery and is
therefore barred by the exception, a court must ascertain
whether the alleged negligence was the breach of a duty to
select or supervise the employee- tortfeasor or the breach of
some separate duty from the employment relation.").
Government argues first that the FTCA's intentional torts
exception bars Plaintiffs' claims against it, because the
claims reduce to negligent supervision claims precluded by
Sheridan II. (See Gov't Br. (Doc. 41)
at 11-13.) Second, the Government argues that that the
Government owes no duty to Plaintiffs under North Carolina
law that is entirely independent of Nevarez's employment.
(See id. at 14-16.)
argue that Government employees breached duties entirely
independent of Nevarez's employment status through their
own negligent acts and omissions, including those imposed by
North Carolina law. (See Pl.'s' Opp'n
Br. (Doc. 46) at 7-8.) Plaintiffs contend that the
Complaint's negligent hiring, supervision, and retention
allegations are limited to the Bivens claims against
Individual Defendants. (See id. at 10.) Plaintiffs
also argue that "the mere existence of negligent hiring,
supervision, and retention" allegations does not
preclude FTCA claims grounded in independent duties.
parties have meritorious 12(b)(1) arguments. The Complaint is
littered with negligent hiring, supervision, or retention
allegations supporting Plaintiffs' claims against the
Government, even if not styled as such, and those claims are
barred by the intentional tort exception under Sheridan
II. See 969 F.2d at 75. For example, Plaintiffs
allege that the Government breached a duty to train personnel
on how to prevent, identify, and treat child sexual abuse.
(Am. Compl. (Doc. 39) ¶¶ 307, 315, 327, 335.)
Contrary to Plaintiffs' assertion that the negligent
hiring and supervision claims are limited to the
Bivens claims, these allegations are explicitly
contained in Plaintiffs' third, fourth, and fifth claims
for relief against the Government. Further, the court agrees
with the Government that Plaintiffs attempt to premise claims
on the Government's failure to abide by the DoD
regulations, "is simply to assert that [DoDEA] employees
were not properly supervised." Sheridan II, 969
F.2d at 75; (see Gov't Br. (Doc. 41) at 15). In addition,
these DoD regulations, by their very nature, do not apply to
non-military families and personnel or a private person in
North Carolina, let alone a school. See, e.g.,
LaFrancis v. United States, 66 F.Supp.2d 335, 341
(D. Conn. 1999) ("[T]he services of the FAP were only
available to Navy personnel and their immediate families; if
the plaintiff had been married to a civilian, she would not
have been eligible to participate in the
FAP.") While the FTCA caselaw dictates that
courts should look to similar or analogous state law duties
as those imposed by federal regulations, see, e.g.,
Florida Auto Auction of Orlando, Inc. v. United
States, 74 F.3d 498, 502 (4th Cir. 1996), Plaintiffs
have only attempted to analogize these DoD regulations to an
assumption of the duty claim under North Carolina law.
(See Pl.'s' Opp'n Br. (Doc. 46) at 2 0.)
But that theory of liability, i.e., relying on the gratuitous
promulgation of Army regulations, was foreclosed by the
Fourth Circuit's decision in Sheridan II.
See 969 F.2d at 75 ("To premise a claim on
failure to follow these regulations, with nothing more, is
simply to assert that naval employees were not properly
supervised."). To the extent that Plaintiffs'
claims against the Government allege negligent hiring,
supervision, retention, or training, those claims will be
dismissed. To the extent Plaintiffs' remaining claims are
premised on duties created by the DoD regulations, the court
finds them to be barred by the intentional tort exception and
the FTCA's private-person principle, and they will be
are correct, however, that the mere presence of negligent
supervision allegations precluded by the intentional tort
exception does not foreclose all of their claims. For
example, even after Sheridan I and Sheridan
II a general state law assumption of the duty negligence
theory can support an FTCA claim. Sheridan II, 969
F.2d at 74 (noting that plaintiffs dropped their claim
predicated on the conduct of the three corpsmen, i.e.,
abandoning a drunk corpsman possessing a rifle without
notifying authorities, which the Supreme Court had suggested
could form a state law duty independent of the
tortfeasor's employment). Stated another way,
notwithstanding the DoD regulations, the issue remains
"whether a private person could be held liable in North
Carolina if he or she were to commit the acts alleged in the
Complaint ... by the Government." Lumsden v. United
States, 555 F.Supp.2d 580, 587 (E.D. N.C. 2008) .
Sheridan I, the Supreme Court specifically stated
that "[t]he negligence of other Government employees who
allowed a foreseeable assault and battery to occur may
furnish a basis for Government liability that is entirely
independent of [the tortfeasor's] employment
status." Sheridan I, 487 U.S. at 401. At its
core, the Complaint alleges that the Government failed to
protect Minor Plaintiffs from foreseeable abuse and to report
abuse when it occurred, in violation of North Carolina law
and a federal reporting statute. The Complaint alleges
negligence against the Government through acts and omissions
of the Individual Defendants themselves, not Nevarez, and
many of the allegations "cannot reasonably be read to
allege that the plaintiffs are seeking relief from the
Government arising from an intentional assault and battery
inflicted by [Nevarez]." See Lumsden,
555. F.Supp.2d at 584. Instead, as Plaintiffs argue,
Nevarez's "employment by the Government is
irrelevant to [much of] the plaintiff's theory of
liability." Id. (citing Sheridan I,
487 U.S. at 402); (see also Pl.'s' Opp'n
Br. (Doc. 46) at 14 (arguing that the Government's duties
would apply here whether Nevarez was a teacher, volunteer, or
"off-the-street vagrant").) But that is only half
of the inquiry. Plaintiffs must also plausibly allege facts
to satisfy the FTCA's private-person principle - i.e.,
that the Government could be liable to Minor Plaintiffs as a
private person under North Carolina law. That private-person
inquiry requires the court to determine whether Plaintiffs
plausibly state a negligence claim under North Carolina law.
Under North Carolina law, a defendant cannot be held liable
for negligence without owing a duty to plaintiff, breaching
that duty, and proximately causing an injury. Stein v.
Asheville City Bd. of Educ., 360 N.C. 321, 328, 626
S.E.2d 263, 267 (2006)) .
court therefore turns to whether the Complaint plausibly
establishes a duty owed by the Government to Minor Plaintiffs
under any of Plaintiffs' six theories of negligence under
North Carolina law. See Durden v. United States, 736
F.3d 296, 302 (4th Cir. 2013); see also Rivanna Trawlers
Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 239
(4th Cir. 1988) (citing Bell v. Hood, 327 U.S. 678,
682 (1946) ("[W]hen the contested basis for jurisdiction
is also an element of the plaintiff's federal claim, the
claim should not be dismissed for lack of subject matter
jurisdiction.").) Plaintiffs' theories essentially
fall into two categories: those premised on a duty of
ordinary care to prevent foreseeable harm - which all persons
in North Carolina owe to each other, and those premised on a
heightened duty of care.
analyzing each alleged duty in the FTCA context, this
court's job is to predict how the Supreme Court of North
Carolina would rule on any disputed state law questions if no
controlling precedent exists. See Menard v. United
States, No. 4:15-CV-160-D, 2016 WL 4258978, at *3 (E.D.
N.C. Aug. 10, 2016) (citing Twin City Fire Ins. Co. v.
Ben Arnold-Sunbelt Beverage Co., 433 F.3d 365, 369 (4th
Cir. 2005)). In predicting how the North Carolina Supreme
court might decide an issue, this court also
"'consider[s] lower court opinions, treatises, and
the practices of other states.'" Menard,
2016 WL 42589878, at *3 (quoting Twin City Fire
Ins., 433 F.3d at 369). This court "'follow[s]
the decision of an intermediate state appellate court unless